PEOPLE v. BIANE

Respondent, Jeffrey Scott Burum, Answer Brief on the Merits

Cal.April 16, 2013

Case No. 8207250 In the SUPREME COURT Supreme Court FILED ofthe APR 16 2013 State of California Frank A. McGuire Clerk Deputy THE PEOPLE OF THE STATE OF CALIFORNIA, PlaintiffandAppellant, v. PAUL BIANE, MARK KIRK, JAMES ERWIN, JEFFREY BURUM, Defendants and Respondents. | AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION TWO CASE No. E054422, SAN BERNARDINO COUNTY SUPERIOR COURT CASE No. FSB 1102102 ' HON. BRIAN MCCARVILLE, JUDGE JEFFREY BURUM’S ANSWERBRIEF ON THE MERITS ARENT FOX LLP STEPHEN G. LARSON (SBN 145225) MARY CARTER ANDRUES(SBN 138486) JONATHANE.PHILLIPS (SBN 233965) 555 WEST FIFTH STREET, 48TH FLOOR Los ANGELES, CALIFORNIA 90013-1065 TELEPHONE: (213) 629-7400 FACSIMILE: (213) 629-7401 ATTORNEYS FOR DEFENDANT AND RESPONDENT, JEFFREY BURUM Case No. 8207250 In the Supreme Court ofthe State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffand Appellant, V. PAUL BIANE, MARK KIRK, JAMES ERWIN, JEFFREY BURUM, Defendants and Respondents. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION TWO CASE No. E054422, SAN BERNARDINO COUNTY SUPERIOR COURT CASE No. FSB 1102102 HON. BRIAN MCCARVILLE, JUDGE JEFFREY BURUM’S ANSWER BRIEF ON THE MERITS ARENT FOX LLP STEPHEN G. LARSON (SBN 145225) MARY CARTER ANDRUES(SBN 138486) JONATHANE.PHILLIPS (SBN 233965) 555 WEST FIFTH STREET, 48TH FLOOR LOS ANGELES, CALIFORNIA 90013-1065 ‘TELEPHONE: (213) 629-7400 FACSIMILE: (213) 629-7401 ATTORNEYS FOR DEFENDANT AND RESPONDENT, JEFFREY BURUM Il. Il. TABLE OF CONTENTS Page INTRODUCTION00. eccseecceeseeeeeeaeceaeeseesaesseesseesssseseesseseesesseaeenes 1 BACKGROUND 1... eeccecececseeseeestesseeeceeseseseneeseessaeseesessecseeesasacanenes 3 A. The County’s Settlement With Colonies...............ccccceeeees 3 B. The Indictment «00...ee ceeeeccscesscecsseessesseeeseeeseeeseeeseseaeeessuseans 4 C. The Trial Court’s Ruling ..........cccccececsesssessecsessecsscsseseecesseseees 5 D. The Court ofAppeal’s Opinion............cceccssesesceesseesseeesesees 5 ARGUMENTooo. ceccceeseseeeseseeeeneseesnsesseseesaeeseesseeseesecsscnssecsesenes 7 A. The Court ofAppeal Correctly Held that Mr. Burum Cannot Be Charged With Aiding and Abetting the Alleged Receipt of Bribes 2.000... cccessessseseesesseseeseseeessesecees 7 1, An Alleged Briber Giver Cannot Be Charged Under Penal Code Section 31 for Aiding and Abetting the Separate Crime of Receiving the BYiDC oe. eeeeseesesesecssscesssneseseccesesesecsescststsssssstsccasseceee 7 2. There Is No Basis to Overturn the Clapp Rule......... 10 The Bribe Giver Lacks the Requisite Intent to Aid and Abet the Receipt of the Bribe Under SECTION 3]oeeeeeeesetecseeeseessessecsecsessecssesenseessnavaases 14 4. The People’s Attempt to Limit Clapp and Wolden to Section 1111 Ignores the Legislative History and Judicial Interpretations of Sections BV and LDLeececsecseeseeeensessecsececseeseees 15 5. The Clapp and Wolden Rule Was Properly Applied to the Charges Against Mr. Burum.............. 18 6. The Alleged Threats and Extortion Are Irrelevant to the Bribery Charges..............ccceccceee 21 7. Holding that Bribe Givers and Bribe Receivers Can Aid and Abet Each Other Would Underminethe Legislative Intent in Amending Section 1111, and Could Thwart Future Bribery PYOSECUTIONS 000... eee eeeeeceeecseesecesesseeesseseesaeseessecanevseces 24 TABLE OF CONTENTS (continued) Page The Court of Appeal Correctly Held that Mr. Burum Cannot Be Charged With Conspiring to Commit the Crime of Receiving the Alleged Bribes.............cccccseeees 26 1. Wharton’s Rule Is Irrelevant...............ccceceeesseesseeees 27 2. The Court ofAppeal Properly Relied on WL.eeceecccscccensesseesesessessasecscesasceseeneecsateessseeueensacs 28 If This Court Overturns Clapp and Wolden, Due Process Prohibits Retroactively Applying the New Rule ofLaw to Mr. Burum.........cccccccecccccscseesseesssesvesecseeesees 29 1. Due Process Precludes the Ex Post Facto Application of Laws and Judicial Decisions............. 29 2. Because Overturning Clapp and Wolden Would Constitute an Ex Post Facto Judicial Decision, It Could Not Be Applied to Mr. Burum..........0.00.0.. 30 The Court ofAppeal Correctly Held that Mr. Burum Cannot Be Charged With Aiding and Abetting or Conspiring in the Alleged Violation of Government Code Section 1090 wo.eeccsccccsssssssscecessestsssesssseseecseeeerenes 34 1. Government Code Sections 1090 and 1097 Do Not Apply to Private Citizens...........0.ccceeeeee sees 35 2. The Court of Appeal Properly Based Its Ruling on the Legislative Intent to Exclude Aiding and Abetting Liability 0.0.0... cccecsssecssessescessesseseseseceees 36 3. The People’s Attempts to Distinguish D’Amato Fath... cece ceccesesscceseeseeesessecseecssecseessecssssessescasseeeereeenees 38 4. Strong Public Policy Concerns Would Be Implicated by Expanding Liability Under Sections 1090 and 1097 to Include Private Parties to a Public Contract ........cccccceccscsssesseceeeees 39 5. DueProcess Prohibits Retroactively Applying Any Expansion of Liability Under Sections 1090 and 1097 oooeeeccesssessseeesssecssesssssssucaseeeeeees 40 The Court of Appeal Erred In Finding that Government Code Section 9054 Was Constitutionally SOUNGoe ccsccscceeeeteesessessessescsssssssessseecsecsesessacsusesaeesessrseneeass 40 -ii- TABLE OF CONTENTS (continued) Page 1. Section 9054 is Unconstitutionally Vague................ 40 2. Underthe Court of Appeal’s Interpretation, Section 9054 Not Only Remains Vague, But Also Impermissibly Criminalizes Free Speech......... 43 F, The People Do Not Have Unfettered Authority to Prosecute Mr. Burum Using Legally Deficient Charges.....44 TV. CONCLUSIONo.ooceeeesecneeesseeeeseeeneeseeseeeeneeeieeseeesesesseeesneeeas 45 -iii- TABLE OF AUTHORITIES Page(s) FEDERAL CASES Agan v. Vaughn (11th Cir. 1997) 119 F.3d 1538 oo. ccccccssesssscesscesseeeseessecsssesseesseeeaes 21 Bouie v. City ofColumbia (1964) 378 US. 347oceccseseeeeeeeeaeeeseeeecseesseeseneeseeesanesseesaaeess 30, 32 Calder v. Bull (1798) 3 U.S. 386 oececccccssecsecseesseessecsseesaesseecseeessesseeecssseseeseeeeeeeseaeeaes 30 Clark v. Brown (9th Cir. 2006) 450 F.3d 898 ooo. ccccsecssessecsssesseessseeeseseseeeseeeseeeseeees 32 Devine v. New Mexico Dept. ofCorr. (10th Cir. 1989) 866 F.2d 339 ooccccsescseecssesseessecssanscessessessseseeenes 33 F.C.C. v. League of Women Voters ofCal. (1984) 468 U.S. 364...ccceseeeseesnecsaeeeseseeessesseesseseeseeeseesssessaeseneesas 42 Fletcher v. Peck (1810) 10 U.S. 87oeeecceccecceeseseeeseeseeesesseecseeessesseeecseseseeeseecssereeeaas 30 Graynedv. City ofRockford (1972) 408 U.S. 104...eee ccccesessecssesssesseesscesseesseesseeceeeseeessssceesssessas 40 JL. Spoons, Inc. v. City ofBrunswick (N.D. Ohio 1998) 181 F.R.D. 354 ooo cecccccsscsseccsseeseeeeseeseenseseseeseeees 42 Kolender vy. Lawson (1983) 461 U.S. 352occcecceeeeseeesseetssceeeceuesseeseesessaeesseesersneeeeatesseanes 41 Lacey v. Maricopa County (9th Cir. 2012) 693 F.3d 896 ooo.ccceccecsesesscessessesssesessesscsseseeseecneenssens 22 Marin v. Univ. ofPuerto Rico (D. P.R. 1973) 377 F. Supp.613 00... ccccccssssessecsscessesseeseesscseecensesseeseeens 42 McCormick v. United States (1991) 500 U.S. 257oececescesesseessessessessecsecseessecseseseecsscsenseuseeeeeseaneas 22 Meyer v. Grant (1988) 486 U.S. 414cccccesssesseessesseseessecesscsecsecesuecseesessraceuseenenaees 21 Rathert v. Galaza (9th Cir. 2006) 203 Fed. Appx. 97.......ccccsssssscsscssessessecssesscscssesescaneaees 30 iv Secretary ofState ofMd. v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947 ooeccccsecteeeeesteessaecesseseeeessnessecseeseasesaesssseesesenes 4] Smith v. California (1959) 361 U.S. 147 oe eecccccescceseeseesescssessesceessesaesseesecssessessessssesesseenees 4] Stogner v. California (2003) 539 U.S. 607 oo... eececcescesseeseessessseessceesscessseeseesseeseessssecasesseees 30, 33 Thornhill v. Alabama (1940) 310 U.S. 88 ooo cccccseeeseceseeessesseeesseesseeesescneecssseseeesseeseeeseeaenas 21 United States v. Poindexter (D.C. Cir. 1991) 951 F.2d 369 oo... cecccsscesecssesseeseesssesesseens 40, 41, 42, 43 United States v. Siegelman (11th Cir. 2011) 640 F.3d 1159occccsseesecseenecseessecerssenssenesenes 22 STATE CASES Calhoun v. Superior Court In and For San Diego County (1955) 46 Cal.2d 18 oo.ccccccessessseesesseesseesscseeseecneeseeseeses 26, 27, 29, 31 Carson Redevelopment Agency v. Padilla (2006) 140 Cal-App.4th 1323 oo. ccccsssssssssesseseesseesesscsscsersscssssessseeees 37 Castro v. Superior Court (1970) 9 Cal.App. 675 .o..eccccccscscsssssessessscsecsscnecssessseseseesessessssssesseseseaees 22 Crawford v. Imperial Irrigation Dist. (1927) 200 Cal. 318 ooo. ccscesessscsssesessseessesssecsecseecsersessasssesneess 6, 43, 44 D’Amato v. Superior Court (2008) 167 Cal.App.4th 861, review den. 2009 Cal. LEXIS 408 (Jan. 14, 2009)... ccccecsscsseesssesssesssesseeeseeeseeesessessvseesssscsesensseaeenespassim Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33 oo.ceecccccccsscssecsstessecessecsssecsuecsasecsusssesesseseesaaeeneas 42, 44 In re Baert (1988) 205 CalApp.3d 514 oo. cccecscccsccsccssccseccsscsscessesecsecseseeeeas 29, 33 In re Meagan R. 42 Cal. App. 4th at 24 oooecccesccencetessesseesesseeseeseessessesecsesasansans 36, 37 In re Richards (2012) 55 Cal.4th 948 oooccccccsessecsscesseseessenesesceesssccsecseceeseeseensseaeens 7 Mandel v. Municipal Court (1969) 276 Cal.App.2d 649 oo... .cccccccccsccssecssessscssesssccssesssecesenecterens 10, 45 Moss v. Superior Court (1998) 17 Cal4th 396 oeecceccceseeeeteeseecseeeseesseesesaeesaeeeneeseeeseees 32, 40 People ex rel. State ofCalifornia v. Drinkhouse (1970) 4 CalApp.3d 931 oo.cececcsecsssssecsssecsssesseessneseseessesseseenseseseenars 38 People v. Beeman (1984) 35 Cal.3d 547 oo cccccececeeseeceeeeeseecssessesseessreseeaes 14, 15, 21, 23 People v. Bennett (1955) 132 Cal.App.2d 569 oo. ecccccccececssessseesseseessesseeesecsesessesseeens 13, 31 People v. Bompensiero (1956) 142 Cal.App.2d 693 oceesccscessessesssessecsscsssessecseessessesseecsseenens 13 People v. Buffum (1953) 40 Cal.2d 709 eecccscccssseessessesstesssesssestessecseeesesseesseeseeenes 10, 11 People v. Bunkers (1905) 2 Cal.App.197 ....cccceccsccesccceessececssessessessesseseessesseesssatssesenacens 8,31 People v. Clapp (1944) 24 Cal.2d 835 ooo ccccccccccsssessseeseessseeeseecssceeeseseeeseseseesseneespassim People v. Coffey (1911) 161 Cal. 433 occccccssessesseessessssessessesssessceseeeesceessueserseas 16, 25 People v. Davis (1930) 210 Cal. 540occccccssessssssesseessecssecseessessecesesssssessseseee 5, 8, 31 People v. Diedrich (1982) 31 Cal.3d 263 oo. ccccccsssssssesscssescescessecsscsesseessesssesesssssseceeeeacenes 19 People v. Farley (1996) 45 Cal.App.4th 1697 oo... cccccscssssessssssssseessesseeseesseesssssseceecaseaes 33 People v. Grayson (1948) 83 CalApp.2d 516 oo. .cccccccsecssssscsseceseessessecseseseecsssecsersarees 13, 20 People v. Honig (1996) 48 Cal.App.4th 289 ooocccccccsssesscsssesscssecsecessecsecsecsscsesenseeaees 37 People v. Hoover (1974) 12 Cal.3d 875 ooo. eecececcceccecssceessscessecsesseesesseeseecsesssescseseessnecaeeass 17 People v. James (1998) 62 Cal.App.4th 244 0...baceeceteecesesaeceecneceeaeesseeseeeesessnseneees 33 People v. Keyes (1930) 284 P. 1105ooeceesessecssssseessecsseeseessesseessnecsecaes 26, 27, 28, 31 People v. King (1993) 5 Cal.4th 59 ooocccsecsssessecssesssseessesseccesseseccseceecsesscesccaeseaenaneas 30 Vi People v. Lima (1944) 25 Cal.2d 573 ooo. .ececcccseceeeeceneeseseeeeeeeeeseneseeeeeeeesareeeeeeeeaeess 11,12 People v. Lips (1922) 59 CalApp. 381 ou... ecceceecscesseeenesseseeseessseeesneeneeeeseeeees 8, 14, 31 People v. MacKenzie (1956) 144 CalApp.2d 100 oo.eceececceeseeesneesseeeseeseeeseeeesesesneeseeeas 31 People v. Marshall (1957) 48 Cal.2d 394 ooo. cccccccceeseceeeneecsseessaneecsseeessseessseesseesseeesesteess 10 People v. Martin (1931) 114 CalApp. 392 oooeccceceecseeeseeesseesseeesneececessneseeesseseneenas 3] People v. Mayers (1980) 110 CalApp.3d 809 oo.cecccscccssesseceeseeessesseessasecsecseeeseeeseeess 27 People v. Meacham (1967) 256 Cal.App.2d 735 ..occccccccssccstsesseesessseessesseeseeseeccssssessecserseceas 14 People v. Milstein (2012) 211 Cal-App.4th 1158, review den. (March 27, 2013) .........000 2 People v. Mirmirani (1981) 30 Cal.3d 375 oeecccccssecsseceesessneeseessesecsseeseecesecsseeersenseessessaeae 41 People v. Morante (1999) 20 Cal4th 403 oooceeseceseseeessecssesseeeeeeseesseesseesseseeseeeseeeeeas 30 People v. Overstreet (1986) 42 Cal.3d 891 oo.ceecssesseessecsecssssseecssecsecssccsscersereesessescneasees 38 People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 oeeeceseteecseseeessesseseseeeeessecsscsssensesresesesseaeees 45 People v. Swain (1996) 12 Cal4th 593 oooccccscssseessceeeesseseesseeessessecsseesauceeseeeatens 27, 28 People v. Tardy (2003) 112 Cal.App.4th 783 oecccccccessessssssssesssessceecssecsesseesesscseessesaenss 10 People v. Tewksbury (1976) 15 Cal.3d 953 ooocsccscssesseessesesssecseecssecsessscesseeseesseeseceuesecsaes 14 People v. Vallerga (1977) 67 Cal.App.3d 847 oo... cccccccscesssssssssscscecssecsscsseessecssesseseeseuseseanee 35 People v. Wallin (1948) 32 Cal.2d 803 ooo. ceccccsessesssessscssecsseseecesecseecseecseessessuseeseneas 11, 12 People v. Watson (1971) 15 CalApp.3d 28 oo..ccecccccccssessessesseesecssecsessesseessesssssssssecsseesenee 37 vii People v. Wayne (1953) 41 Cal.2d 814 ooocccccccsceccesseeeseesenecaeccaeeseesseneesseeeaeseeeseaees 12 People v. Wolden (1967) 255 CalApp.2d 798 ......cccccccccsseceseeseneeseceeceeeeceeeeeseeneeeseeaespassim People v. Wong (2010) 186 CalApp.4th 1433 oecccseesrecceeeeeesaeeeeeeeaeesesseeeseeesenees 37 Robinson Helicopter Co. v. Dana Co. (2004) 34 Cal.4th 979 oooccecesseseseceseeseeeesseeaeeeseeeeseeeeeesaneeaeeeeneaes 39 Webbv. Superior Court (1988) 202 Cal.App.3d 872 .......cccccceesseccceseceneceseseeeeeseecesseeeecreeasesenseeas 37 FEDERAL STATUTES 18 U.S.C. § 1505 woececcesereetsecseeeeecseesseeeaessseeeeaeeeaeestaetensessetiees 4l 18 U.S.C. § SS eeececceeeseeeseeeeeeseaeeneeseeeeeseaeeaeesaessneeeeeesenseeeeeaeeeaes 43 STATE STATUTES Gov. Code § 1090 oo...ee eccesseseseceseseeesaeesaeessenecsseesseeseseeeessaeeessaeesneeespassim Gov. Code § 1092 0... cccsccssccssnnecesneeseescaeesseessnecsseeesseeeceseeessseesseesesseneess 37 Gov. Code § 1097 ooo... ee ccccessessceesseeeeeesnessesesecsaeessesseseseseceesaees 2, 34, 35, 38 Gov. Code § 9054...cececceseeeeesseseeestcesaeseseeaeeseeeesenesseeseeeeeaesaeeespassim Gov. Code § 82039oeeeccesseesseceeeeseetsaeceaceeseecsesseesesseeeesseaeessassereeeeeeees 42 Pen. Code § 31... eececsesseessesssseesesseseseseseeseeeeesseeeessaeseaseenenecesaseneenaesspassim Pen. Code § 32.00... ceccccccsssssccssssecessseseecssescssesecessesecesesesessaeececssceeessarsceausauers 1] Pen. Code § 68.0... eeccesscceseeseeeseneesceeseeessecsaeecauesseessessaeessseesseesssesseeseeees 8, 20 Pen. Code § 69.00... ceccccccessssecssssecesssessecsseeeseesceeseeeeesseeeessnseeccssenseceseneseeseatese 20 Pen. Code § 85 oo... eesssecsseessseseesseceseseenecesensesceeessessaeeesssaeseasesseeessaeeseaees 20 Pen. Code § 86.0... ecccececcecseeceseeeeeseeeeeseeeaeensneesserecseesseeesesseesscsseseessssgeeeenes 20 Pen. Code § 165ceeecsccseeseesseceseseesseeseeeeeeceseauessesceeesseeesseeesaesaesenees 20, 21 Pen. Code § 3378 ......cccccsssssecsssccesssseeccesaecesseecessaeeccseecessseaeeecsssesesssuseceesaness 20 Pen. Code § 496.0... eeccccsssessececesseceesaessaesseeesseecseseeeseeeeeeateeeseesesenssesneas 11 Pen. Code § 800ceecccccccsssessseessssnecsseeeseeeseeeesnecsecsesateeeeeesceeesessuseeeaasensess 2 Pen. Code § 801.5 ooo. eeeecccccscessseecsssseessssseeseseeessasceaeseaeeeeeneeeeeeseceusaaueneuensess 2 Pen. Code § 803 oo... ceeccsccssscssessseccsssesesssesaeesseseseecseessneceeessetecsecseuenseass 2, 33 Vill Pen. Code § 971 oo... ceeccccecssneecessseceeeneeeeeeeneeeeseeesesaceeseeaaeeeeeeaeeeseesaeeesnsaaaeeeaes 9 Pen. Code § 1004.0... cceccccsssecsssneescesseseceeseceseceeaeeseeeseeeeeeeaeeeeeueeseaeeeeeenees 45 Pen. Code § L111... eccccccsssnneceeseeeeeseneeeeeeeeeeeeaaeseeaaeeseseeeeneeaaeeseespassim RULES Cal. Rules of Court 8.520 oo.cccccsscesccescecsceeesseeesecensessssseeeececseneesuuenenss 1 ix I. INTRODUCTION Before this Court are four distinct issues arising out of the lower courts’ rulings on defendant and respondent Jeffrey Burum’s demurrer: 1. Can an alleged bribe giver be charged under Penal Code section 31 with aiding and abetting the receipt of the same bribes he is accused of giving? 2. Can an alleged bribe giver be charged with conspiracy to commit the crime of receiving the same bribes he is accusedofgiving?’ 3. Can a private citizen be charged with conspiring in or aiding and abetting a public official’s violation of Government Code sections 1090? 4. Is Government Code section 9054 void for vagueness and an impermissible criminalization of constitutionally- protected activities? This Court should rule in Mr. Burum’s favoron all four issues. First, the People’s attempt to charge Mr. Burum,the alleged bribe giver, with aiding and abetting the receipt of bribes is barred by long-standing California law. Second, California courts uniformly recognize that the bribe giver and bribe receiver cannot conspire with each other because they lack a common motive or purpose. Third, the language andlegislative history of Section 1090 reveals a legislative intent to preclude aiding and abetting and conspiracy liability for private citizens. And fourth, Section 9054 is unconstitutionally vague for failing to define the phrase “improperly influence,” and, under the Court ofAppeal’s interpretation, impermissibly criminalizes constitutionally-protected activities. ' Although the People conflate these first two issues, they actually involve separate and distinct theories of derivative liability. ? In their Opening Brief, the People only quote the bribery and Section 1090 issues raised in their Petition for Review, improperly ignoring the Section 9054 issue raised by Mr. Burum in his Answerto Petition for Review. (Cal. Rules of Court, Rule 8.520, subd. (b)(2).) The primary focus of the People’s Opening Briefis the bribery charges against Mr. Burum. The People ask this Court to overturn over a century of precedent precluding their improper attempt to charge Mr. Burum,the alleged bribe giver, under derivative theories of liability for the crimeofreceiving bribes.’ The People offer no basis for this Court to so radically change California bribery law. Moreover, even if this Court overturned this long-standing precedent, due process precludes the ex post facto application of such a new and unexpectedinterpretation of the law to Mr. Burum. The People’s Section 1090 arguments are equally meritless. Section 1090 targets improper conflicts of interest by public officials, and the legislative history and statutory construction of Section 1090 and Government Codesection 1097 reveals a legislative intent to preclude derivative liability for private citizens such as Mr. Burum. Again,the People offer no convincing reason for this Court to find otherwise. Moreover, as with the bribery charges, due process precludes the ex post facto application of any new rule announcedby this Court. ° The Indictment alleges that the bribery was committed on or before November 29, 2006 (Clerk’s Transcript (“CT”), 5:5-8, 13:21-16:6), and thus the statute of limitations for the crime ofgiving bribes expired nolater than November 29, 2009. (Pen. Code § 801.) The crime of receiving bribes by a public official, however, is potentially subject to tolling under the “discovery rule.” (Pen. Code §§ 801.5 and 803, subd. (c).) Attempting to capitalize onthis tolling provision, the People claim that the alleged crimes were not discovered until November1, 2008, and thus argue the Indictment wastimely filed on May 9, 2011. (CT 25:11-12.) As explained in Mr. Burum’s Motion filed March 6, 2013, this attempt to invoke the discovery ruleis legally deficient, and the charges are time-barred on the face of the Indictment. This jurisdictional bar should be addressed as a preliminary matter, particularly in light of the Court’s recent denial of review in People v. Milstein (2012) 211 Cal.App.4th 1158, review den. (March 27, 2013) (holding that conspiracy charges are not subject to the discovery rule). Mr. Burumis prepared to submit further briefing onthis issue should the Court so order. 2 Finally, this Court should reverse the Court of Appeal’s decision regarding Section 9054. The only difference between conduct criminalized by Section 9054 and garden-variety lobbying activities is that Section 9054 prohibits promises to “improperly influence”legislators. But the statute fails to define whatconstitutes “improperly” influencing, rendering the statute void for vagueness. The Court ofAppeal disagreed, holding that “improperly influence” means “the use of personal, or any secret orsinister, influence uponlegislators.” This definition not only fails to cure the statute’s vagueness, it criminalizes constitutionally-protected lobbying activities, which routinely involve “personal” influence. Section 9054is thus void for vagueness and, under the Court ofAppeal’s ruling, an unconstitutional restraint on protected First Amendmentactivity. I. BACKGROUND A. The County’s Settlement With Colonies Mr. Burumis a developer with a managerial role in Colonies Partners, L.P. (“Colonies”). (CT 2:21.) In the early 2000s, land owned by Colonies in Upland, California, becamethe focal point of a dispute between Colonies and the County of San Bernardino (“County”). (CT 4:13-15.) The County claimedthat it held easements on the property allowingit to redirect storm runoff onto Colonies’ land, and that Colonies should construct and pay for a regional flood control facility to receive this runoff. (CT 4:13-22.) Colonies objected to the County’s actions andfiled a lawsuit, ultimately prevailing in two separate trials. (CT 4:22-5:2; 57:10- 16.) The secondtrial court issued a 50-page Statement of Intended Decision in favor of Colonies on July 31, 2006 (CT 56-105), harshly criticizing the County for, among otherthings: | e Having “in effect... held [Colonies’] development ‘hostage’ byvirtue of the cloud ontitle” (CT 79:11-12); 3 e Having “unreasonably and unjustifiably interfere[ed] with [Colonies’] business” (CT 88:27-28); e Having “coerced [Colonies] into giving [a consent] letter by stating that it would not approve the 1999 Agreement without it” (CT 89:27-90:1); e Having “played ‘hide the ball’ with respect to... its interpretation of the easements” (CT 90:7-9); e Having pursued a “deliberate course of conduct ... designed to shift to [Colonies] the obligation to build and pay for regional flood control facilities” (CT 91:28-92:2); e Having engaged in conduct that “would have endangered the public safety” absent the mitigating efforts of Colonies and other agencies (CT 92:2-4); and e Having “committed a massive, permanent, severe, and inseverable surcharge of the easements, in violation of California law” (CT 99:26-28). Faced with this harsh Statement of Intended Decision — and the prospectofliability for damages in excess of $300 million, plus mounting legal fees — the County re-engaged in settlement negotiations. (CT 37:8- 11.) In November, 2006, after a multi-session mediation presided over by retired California Supreme Court Justice Edward M.Panelli, the County Board of Supervisors voted 3-2 to approve a $102 million settlement of the litigation. (CT 5:13-15; 37:13-19.) After finalizing the Settlement, the Board unanimouslyratifiedall actions taken in respect to the Settlement. (CT 109-113). The County then filed a validation action, and a judgmentof validation was entered by the Superior Court on March 29, 2007, that “binds and permanently enjoins andrestrains all personsorentities, public or private,” from challenging the Settlement’s validity. (Motion for Judicial Notice (“MIN”), Ex. A, p.3.) B. The Indictment The Indictment alleges a conspiracy to gain approval of the Settlement through a combination of bribes and various forms of pressure 4 exerted on Supervisors Postmus, Biane, and Ovitt (through his Chief of Staff, Mark Kirk). (CT 5:3-12.) The alleged “bribes” were in the form of contributions, made well after the Settlement was consummated,to Political Action Committees (“PACs”) purportedly controlled by Messrs. Postmus, Biane, and Kirk. (CT 5:18-6:2.) The Indictmentalso alleges that, by obtaining approvalofthe Settlement, Mr. Burum conspired with and aided and abetted Messrs. Postmus, Biane, and Kirk to violate the conflict of interest provisions of Section 1090, and to misappropriate public funds in violation of Section 424. (CT 17:3-10, 17:26-18:9.) C. The Trial Court’s Ruling Mr. Burum demurredto all seven of the counts brought against him. (CT 29 to 54.) On August 19, 2011, relying on well-settled California law, the trial court sustained Mr. Burum’s demurrerto the bribery charges (Counts 1, 4, 5, 7, and 8) and the Section 424 charges (Counts | and 13). (CT 253:23-26; 254:5-15, 255:20-25, 256:1-4.) The trial court overruled Mr. Burum’s demurrer to the Section 1090 (Counts 1 and 11) and Section 9054 charges (Count 1). (CT 255:4-8, 26-28.) D. The Court of Appeal’s Opinion The People appealed thetrial court’s ruling on the bribery and Section 424 charges, and Mr. Burumfiled a petition for writ of mandate challenging the ruling on the Sections 1090 and 9054 charges. The Court of Appeal consolidated the petition with the appeal, and issued its opinion on October 31, 2012 (the “Opinion”. The Court of Appeal upheld the trial court’s ruling dismissing the bribery charges, holding that Mr. Burum could not, as a matter of law, aid and abet the receipt of the alleged bribes. (Opn., pp.18-19, citing People v. Wolden (1967) 255 Cal.App.2d 798, 803-804 and People v. Davis (1930) 210 Cal. 540, 557.) The court also held that the bribe giver and receiver cannot conspire with each other “‘because the two crimes require different motives or purposes.’” (Opn., p.19, quoting Wolden, 255 Cal.App.2d at 804.) The Court of Appeal also upheld the trial court’s overruling of Mr. Burum’s demurrer to the Section 9054 conspiracy charge, rejecting Mr. Burum’s argumentthat the statute is unconstitutionally vague becauseit does not define the phrase “improperly influence.” Instead, adopting a definition from a 1927 civil case, the court held that “improperly influence’ means‘the use of personal, or any secrete or sinister, influence uponlegislators’ either in support of or opposition to the passage of an act, as opposedto “the open advocacy of the same before the legislature or any 999committee thereof in open session.’” (Opn., pp.34-35, quoting Crawfordv. Imperial Irrigation Dist. (1927) 200 Cal. 318, 321-322.) The Court of Appeal reversed the trial court as to both the Section 424 and Section 1090 charges. (Opn., pp.31, 38.) Regarding Section 1090, the Court of Appeal held that Mr. Burum,asa private citizen, could not be charged with aiding and abetting the alleged conflict of interest because “the Legislature intended Government Code section 1090 to exclude criminalliability on either a conspiracy or an aiding and abetting theory for anyoneother than public officials and public employees with a financial interest in the underlying contract.” (Opn., p.38, citing D’Amato v. Superior Court (2008) 167 Cal.App.4th 861, review den. 2009 Cal. LEXIS 408 (Jan. 14, 2009).) The People filed a Petition for Review on December11, 2012, seeking review of the Court of Appeal’s ruling as to the bribery and Section 1090 charges. On December 19, 2012, Mr. Burum filed his Answerto the Petition for Review, in which he also sought review ofthe constitutionality of Section 9054. The Court granted review, without any limitation of issues, on February 13, 2013. i. ARGUMENT Because a demurrertests issues of law, this Court reviews the decisions below de novo. (In re Richards (2012) 55 Cal.4th 948, 960.) Here, the Court should affirm the Court of Appeal’s ruling as to the bribery and Section 1090 charges, and reverse as to Section 9054. A. The Court of Appeal Correctly Held that Mr. Burum Cannot Be Charged With Aiding and Abetting the Alleged Receipt of Bribes It is undisputed that Mr. Burum has been charged with aiding and abetting, and conspiring in, the receipt of the same bribes he is accused of paying. (CT 3:14-22, 7:22-8:17.) As recognized by both courts below,this - charging schemeis improper. Under long-standing California law, a bribe giver cannot be charged with aiding and abetting the receipt of the bribe under Section 31. Rather than accepting this rule and dismissingall bribery charges against Mr. Burum,the People ask this Court to either overturn its previous decisions, or rule that those decisions somehow do notapply here. (See Opening Brief on the Merits (“OB”), p.3.) Neither ofthese arguments have merit. To the contrary, judicial precedent, legislative intent, and public policy all dictate dismissal of these flawed charges. 1. An Alleged Briber Giver Cannot Be Charged Under Penal CodeSection 31 for Aiding and Abetting the Separate Crimeof Receiving the Bribe Over a century ago, the Court of Appeal recognizedthe legislative intent to exclude aiding and abetting liability between the bribe giver and bribe receiver: It is very evident from an examination of the two [bribery] sections mentioned that it was the intent and purpose of the Legislature to make offering to give, or giving, a bribe an offense, whether the legislator asked for and received it or not. And it seems quite as evident that it was never 7 intended that persons concerned would be interchangeably guilty as accomplices, when the offer was accepted and the bribe received. In such event the giving would be the crime committed by one party, and the taking the crime ofthe other. (People v. Bunkers (1905) 2 Cal.App.197, 204,italics added.) Every published case addressing this issue since Bunkers has agreed that bribe giving and bribe receiving are separate crimes, and that the giver and receiver are not accomplices of each other. In 1922, the Court of Appealheld that a witness whopaid bribesto police officers was not an accomplice to the officers who received the bribes. (People v. Lips (1922) 59 Cal.App. 381, 385.) As the court recognized: [The witness] was in no way concerned with the officers in either asking, receiving or agreeing to receive the bribe. She was on the opposite end of the transaction.” (/d.) Similarly, in 1930, this Court recognized that, under the amended Penal Code section 1111, a bribe giver and bribe receiver are not accomplices of each other “inasmuchasthe asking or receiving a bribe is madea separate offense from offering or giving a bribe undersection 68 of the Penal Code.” (Davis, 210 Cal. at 557.) In 1944, this Court considered these earlier cases, together with cases addressing accomplice liability in other contexts, and announced the following general rule regarding derivative liability under Section 31: If a statutory provision so defines a crime that the participation of two or more persons is necessary for its commission, but prescribes punishment for the acts of certain participants only, and another statutory provision prescribes punishment for the acts of participants not subject to the first provision, it is clear that the latter are * Section 1111 involvesthe corroboration of accomplice testimony. As discussed below, the Legislature amended Section 1111 in 1915 to define “accomplices”as only those individuals who could be charged as a principal — either directly or derivatively under Section 31 — for the identical offense charged against the defendant. 8 criminally liable only under the specific provision relating to their participation in the criminal transaction. The specific provision making the acts ofparticipation in the transaction a separate offense supersedes the general provision in section 31 of the Penal Code that such acts subject the participant in the crime of the accused to prosecutionfor its commission. (People v. Clapp (1944) 24 Cal.2d 835, 838, italics added.) Applying this general rule, this Court found that a woman whosubmitted to anillegal abortion could not be chargedas a principal for the crime ofperforming an abortion—and consequently could not be an accomplice under Section 1111. Ud. at 839.) Importantly, in explaining whyit reachedthis conclusion, the Court noted that under the same analysis “the giver and receiver of a bribe [citation]... are no longer accomplices under section 1111.” dd) The application of the general Clapp rule to bribery was further developed by the Court ofAppeal in Wolden in 1967. The court first explained that, when a crimefits the Clapp rule, “the definitions of accessory, aider and abettor (Pen. Code, §§ 31, 971) do not operate to subject either [of the participants] to prosecution underthe section proscribing the act of the other, and that neither falls within the code definition of an accompliceasto the act of the other(id.).” (Wolden, 255 Cal.App.2d at 803-04.) The court then applied this generalrule to the specific crime of bribery: Bribery is such a crime. The giver whose offense is specifically made a crime [citation] is not an accomplice in the separate and distinct crime [citation] of the receiver [citation]. By code definition, the giveris guilty only if he gives or offers with intent to influence the officer. The officer who asks or receives payment is guilty only if he does so with the understanding that his official action will be influenced thereby. (Id. at 804.) Clapp and Wolden are dispositive here. Mr. Burum is alleged in the Indictment to have given bribes to Messrs. Postmus and Biane. (CT 7:22- 8:17.) As the alleged bribe giver, Mr. Burum cannot, as a matter of law, be chargedas an aider and abettor in the separate and distinct crimes of receiving those very same bribes.” (Wolden, 255 Cal.App.2d at 803-04.) 2. ThereIs No Basis to Overturn the Clapp Rule The People contend that Clapp should be overturned becauseit “has since been substantially limited and largely discredited.” (OB, p.13.) While this might be a persuasive argumentiftrue, it is not. To the contrary, the only criticism of Clapp identified by the People is Justice Schauer’s dissent in Clapp, and then his dissent nine years later in People v. Buffum (1953) 40 Cal.2d 709. (OB, pp.13-15.) A single Justice’s disagreement with the Clapp rule hardly amounts to Clapp being “largely discredited.” Norhasthe ruling in Clapp ever beenlimited, let alone “substantially limited,” by this Court’s subsequent decisions. The People > The People continue to insist that, for purposes of a demurrer, merely pleading the statutory language ofthe bribery statutes, together with the statutory language of Section 31, is sufficient to charge Messrs. Burum and Erwin with aiding and abetted the receipt of bribes regardless of the additional allegations that they gave the bribes. This is not the case. Specific allegations in a charging document control the general. (See Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 668 [alleged facts “contradict and control” general allegations]; see also People v. Marshall (1957) 48 Cal.2d 394, 404 [holding that the “specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge”].) Here, the Indictmentalleges that Messrs. Burum and Erwin hadthe intent to give bribes—notto aid and abet their receipt. Thus, the Indictment fails to meet its primary purpose of giving Messrs. Burum and Erwin “fair notice”ofthe alleged crimes. (See People v. Tardy (2003) 112 Cal-App.4th 783, 786 [“Due process requires that a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense andto avoid unfair surpriseat trial.”’].) 10 cite three of this Court’s cases supposedly demonstrating “conflicting” rulings (id. at pp.15-16), but none of them undermine the Clapprule. The People first cite People v. Lima (1944) 25 Ca].2d 573, in which this Court analyzed accompliceliability for the crimes of theft and receipt of stolen goods. As the People admit, however, the Lima decision “acknowledged the general rule that thieves and those whoreceive stolen property are not accomplices, because they are notliable to prosecution for the identical crime as the other.” (OB, p.15, italics added.) The Lima Court’s recognition of an exception to this general rule (see id.) does nothing to underminetherule’s validity.° In fact, the Clapp rule continued to apply to the crime of receiving stolen goods (Pen. Code § 496) until the Legislature amendedthe statute in 1992. (See MJN Ex. B [explaining that the amendmentwasintended to expandthe scopeofliability for the crime of receiving stolen property by providing “that a principal in the actual theft of the property may be convicted under these provisions, except as specified”].) No such amendmenthas ever been madeto any ofthe bribery statutes at issue here. Similarly unpersuasive is the People’s reliance on People v. Wallin (1948) 32 Cal.2d 803. There, the issue was whether a murderer could be an accomplice to the subsequent crime of being an accessory after the fact under Penal Codesection 32, even though the murderer wasnotlegally capable of independently being an accessory to her own crime. (/d. at 806- 807). As the Court explained: ° The exception recognized in Lima applies “where the thief and the receiver of stolen property conspire together in a prearranged plan for one to steal and deliver the property to the other.” (Lima, 25 Cal.2d at 577.) Becausethe bribe giver and bribe receiver cannot, as a matter of law, conspire with each other, this exception could never apply to the crime of bribery. (See Wolden, 255 Cal.App.2d at 804; infra, Section III.B.2.) 1] The murder was completed as soon as the child waskilled, and no subsequent acts on the part of Mrs. Paz or any other person were required to be shown in order to establish the elements of that offense. Defendant’s crime of being an accessory under section 32 was separate and distinct [citation], although it, of course, depended on the previous commission of the murder. He became chargeable under section 32 when he aided Mrs. Paz to conceal her crime, and she became liable to prosecution for the identical offense by reason of section 31 when she encouraged him to assist her in avoiding arrest and punishment. (Id. at 807.) This is a different issue than the Clapp rule, and it has no application here. Mr. Burum is being charged with aiding and abetting the alleged bribery itself, not some separate and distinct crime committed after the bribery was complete. Nor does the Court’s decision in People v. Wayne (1953) 41 Cal.2d 814, overrule or even disagree with Clapp. Instead, as in Lima and Wallin, the Court recognized an exception to the Clapp rule. In Wayne,the exception arose because the defendant and the witness solicited each other to offer a bribe. (/d. at 825.) The result of this somewhat unusual circumstance wasthat the witness became liable under Section 31 for the defendant’s crime ofsolicitation by virtue of his cross-solicitation. (/d.) Importantly, however, both were on the sameside of the bribery—i.e., both wanted to solicit a bribe from a third party. Mr. Burum,on the other hand, is improperly charged with aiding and abetting the crime on the other side of the alleged transaction, and thus the limited exception of Wayneis inapplicable here. Finally, in addition to this Court’s decisions, the People cite a Michigan case addressing derivative liability under Michigan’s bribery laws. (OB, pp.16-17, quoting People v. White (1985) 147 Mich.App.31, 39.) This caseis irrelevant to the application of California’s bribery laws, - 12 as evidenced by the court’s stated rationale for its ruling: “We are aware of no Michigan authority which would per se preclude prosecution for aiding and abetting the giving of a bribe merely because the accusedis the recipient of the bribe.” (/d. at p. 17,italics added.) In California, however, such binding authority exists, most notably Clapp and Wolden. | In short, the People’s claim that Clapp has beencriticized, called into question, and substantially limited does not hold water. Indeed, the People fail to cite a single case in which the Clapp rule has been disregarded or even questioned. On the other hand, numerouscases have followedthe rule, recognizing that it is well settled. (See, e.g., People v. Bompensiero (1956) 142 Cal.App.2d 693, 708 [‘‘it is well settled that the giver and receiver of a bribe are not accomplices undersection 11117]; People v. Bennett (1955) 132 Cal.App.2d 569, 581 [following Clapp]; People v. Grayson (1948) 83 Cal.App.2d 516, 518-19 [applying Clapp and concludingthat “since the act of placing a bet, without which, of course, the bet could not be received by another, was punishable as a separate offense under subdivision 6, and not specifically under subdivision 3, it was not punishable undersection 31”].) Therule is even part ofthe official comments to the CALCRIM jury instructions for bribery and receipt of a bribe. (MJN Ex. C [CALCRIM 2600, Related Issues, citing Wo/den andstating that “[t]he giver and the recipient of a bribe are not accomplices of one another, nor are they coconspirators because they are guilty of distinct crimes that require different mental states”]; MJN Ex. D [CALCRIM 2603, same].) Put simply, the Clapp rule has been the law ofthis state for decades, remains good law today, andthere is no reason to overturn it now. 13 3. The Bribe Giver Lacks the Requisite Intent to Aid and Abet the Receipt of the Bribe Under Section 31 The focus of Clapp and Wolden wasonthe statutory scheme, and the fact that the Legislature has seen fit to separately punish the bribe giver and the bribe receiver. But a bribe giver is not liable as an aider and abettor under Section 31 for the additional reason that the intent in giving a bribeis necessarily and fundamentally different than the intent in receiving a bribe. Section 31 is not a strict liability statute, and instead requires “that an aider and abettor act with knowledge ofthe criminal purpose ofthe perpetrator and with an intent or purposeeither of committing, or of encouraging orfacilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Moreover: When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime[citation], the aider and abettor must share the specific intent of the perpetrator. ... [A]n aider and abettor will “share” the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose offacilitating the perpetrator ’s commission ofthe crime. [Citations.] (Id., italics added; see also People v. Tewksbury (1976) 15 Cal.3d 953, 960 [“Criminal liability as a principal attaches to those whoaid in the commission ofa crime only if they also share in the criminal intent [citations] or, in the language of section 31, abet the crime.”].) Bribery is a specific intent crime. (People v. Meacham (1967) 256 Cal.App.2d 735, 744.) Thus, an aider and abettor to bribery under Section 31 mustact “with the intent or purpose”offacilitating the bribe receiver’s receipt of the bribe. (Beeman, 35 Cal.3d at 560.) But as California courts have long recognized, the bribe giver does not have the sameintent as the bribe receiver. (See, e.g., Lips, 59 Cal.App.at 385 [noting that the bribe giver “was in no way concerned with the officers in either asking, receiving 14 or agreeing to receive the bribe,” because “[s]he was on the opposite end of the transaction”); Wolden, 255 Cal.App.2d at 804 [recognizing that the two crimes(bribe giving and bribe receiving) are defined in the Penal Code as requiring different intents].) A bribe giver’s intent is to receive whatever benefit is obtained by having given the bribe—i.e., the quid pro quo ofthe bribe. The People allege that Mr. Burum’s intent in offering bribes was to obtain approval of the Settlement so that he would benefit monetarily. (CT 5:3-4.) A bribe recipient’s intent, on the other hand, is to personally benefit from the receipt of the bribe itself. The People allege that Messrs. Postmus and Biane agreedto receive bribes with the intent that they would benefit monetarily. (CT 8:11-17.) But it is nowhere alleged — nor couldit logically be alleged — that Mr. Burum’sintent or purpose in offering bribes was so that Messrs. Postmus and Biane would benefit. And because Mr. Burum’s alleged intent was fundamentally different than the alleged criminal intent of Messrs. Postmus and Biane, Mr. Burum lacked the requisite intent to be charged for aiding and abetting their receipt of bribes. (Beeman, 35 Cal.3d at 560.) 4. The People’s Attempt to Limit Clapp and Wolden to Section 1111 Ignores the Legislative History and Judicial Interpretations of Sections 31 and 1111 Asan alternative to overturning Clapp and Wolden, the People argue that those cases only should be applied when analyzing accomplicestatus under Section 1111, and not where, as here, derivative liability under Section 31 is directly at issue. (OB, p.18.) To make this argument, the People manufacture a conflict between the two statutes—and then argue that the ruling below was improperly based on Section 1111 instead of Section 31. In reality, there is no such conflict, and the holdings of Clapp and Wolden apply equally to both statutes. 15 The People’s basic premise is that the definition of “accomplice”in Section 1111 is “much narrower”than the definition of aiding and abetting liability in Section 31, and thus cases applying Section 1111 are irrelevant to Section 31. (OB, p.8.) The People cite this Court’s ruling in People v. Coffey (1911) 161 Cal. 433, which they claim reflects the pre-1915 understanding that an accomplice under Section 1111 was defined by reference to “the broad definition of aiding and abetting liability from section 31.” (OB, p.10.) The People then argue that the Legislature “abrogated”this broad definition and instead defined accomplice in “the limited mannerrejected by Coffey.” (OB, p.11.) The People have it backward. It was Coffey that departed from Section 31, and the Legislature that then tied the definition of accomplice in Section 1111 back to Section 31. The Court in Coffey held that a bribe giver and bribe receiver were automatically accomplices for purposes of Section 1111, even though one cannot be chargedas a principal under Section 31 for the same crime as the other. (Coffey, 161 Cal. at 440-441, 443-444, 448.) In other words, under Coffey, the definition of accomplice wasbroader than Section 31. This expansion of the accomplice definition is what the Legislature rejected when it amended Section 1111. The Legislature instead incorporated Section 31 by reference whenit defined an accomplice as ‘“‘one whois liable to prosecution for the identical offense charged against the defendantontrial in the cause in which the testimony ofthe accomplice is given.” (Pen. Code § 1111.) Thus, under the amended Section 1111 — and contrary to Coffey — a witness is only an accomplice ifhe or she can be chargedasa principal in the crime, either directly or under Section 31. This new definition was discussed in depth by this Court in Clapp. But here again, the People get it backward. The People claim that Clapp relied on the new,post-1915 definition of accomplice in Section 1111 “in 16 contrast to the broader language in section 31....” (OB,p.12,italics added.) But Clapp did not “contrast” Section 3 1—rather, it applied Section 31 as the statute requires: [T]he mere fact that the witness is punishable for his cooperation with the defendant in the illegal transaction does not make him an accomplice. Jt is necessary to determine whether section 31 and 971 of the Penal Code or other provisions ofthe criminal law subject the witness to prosecution under the provisions that the defendantis accused of violating, or whether the acts of the witness participating in the transaction constitute a separate and distinct offense. (Clapp, 24 Cal.2d at 838, italics added.) The Clapp dissent reached the same conclusion: The definition of the word “accomplice” in section 1111 does not purport to repudiate the provisions of section 31 but is, rather, dependent upon that section for definite intelligibility. (Id. at 843, Schauer, J., dissenting; see also People v. Hoover (1974) 12 Cal.3d 875, 879 [noting that in order to determine that Penal Code section 1111 applies, it is “necessary for the witness to be considered a principal under the provisions of Section 31”].)’ Thus, when this Court in Clapp held that a woman who submitted to an abortion was not an accomplice under Section 1111 to the defendant whoperformedthe abortion, it was not because the Court adopted some narrowerdefinition of “accomplice” than Section 3 1—rather, it was because Section 31 was applied to the crimeat issue, as the amended Section 1111 requires. (Clapp, 24 Cal.2d at 839.) Similarly, the Court of Appeal in Woldenfirst analyzed liability under Section 31 in order to then ’ Even the People concede below that “determination of whether a person [is an accomplice under § 1111] requires an analysis ofwhether the person meets the criteria ofsection 3]. [Citation.] Penal Code section 31 applies directly to the determination ofwhether an individual is an accomplice.” (Opening Br. on Appeal, pp.13-14,italics added.) 17 determineif a bribe giver was an accomplice for purposes of Section 1111 to the bribe receiver. (Wolden, 255 Cal.App.2d at 803-04.) Thus, contrary to the People’s mischaracterization, the Wolden decision wasdirectly based on an analysis and application of Section 31—not some “narrower” definition of accomplice taken from Section 1111. In short, it is precisely because Clapp and Woldenfirst analyze liability under Section 31, before then applying Section 1111 that, under basic principles of stare decisis, these cases are directly relevant to the analysis of Section 31 here. And because these cases do apply to Section 31, they preclude the People’s improper attempt to charge Mr. Burum with aiding and abetting the receipt of the same bribes he is accused ofpaying. 5. The Clapp and Wolden Rule Was Properly Applied to the Charges Against Mr. Burum In a further attempt to avoid the Clapp and Wolden rule, the People argue that the rule was improperly applied here. (OB, p.25.) Specifically, the People argue that the Court ofAppeal was wrong whenit held in Woldenthat bribery is a crime subject to the Clapp rule. (OB, p.27.) According to the People, bribery can theoretically be committed by only one person; for example, by a public official agreeing in his own mind to accept a bribe even though no actual agreement was reachedwith the bribe offerer. (/d.) Thus, the People argue, the crime of bribery does not “require the participation of two or more persons” becausethe actual participation of the other party “is not an element” of the crime of accepting or offering a bribe. (/d.) But the Clapp rule does not require that the participation of another person be an “element” of the crime—only that “participation oftwo or more persons” be necessary for the commission ofthe crime. (Clapp, 24 Cal.2d at 838.) Thus, for example, Clapp would not apply to burglary because that crime can be committed by one person acting completely 18 alone. Bribery, on the other hand, a/ways requires at least a second person. The cases cited by the People merely hold that the second person does not necessarily have to be criminally liable himself in order for a crime to occur. Thus, in Diedrich, this Court held that an actual “bilateral agreement” between the bribe giver and bribe receiver is unnecessary—itis enoughif the bribe receiver agrees in his own mindto receivethe bribe. (People v. Diedrich (1982) 31 Cal.3d 263, 273-274.) But Diedrich does not hold — nor does any other case — that such an “agreement” in the bribe receiver’s mind can occur without even the existence of a potential bribe giver. A public official does not commit the crime ofbribery if he sits at his desk and imagines how great it would be if he was offered a bribe—even if he “agrees” in his own mindthat he will accept that imaginary bribeif it is offered. Instead, there hasto be at least a second person to make the bribe transaction possible, just as there was in Diedrich. (Id.) The fact that the party on one side of the transaction can commit bribery regardless of whether the party on the otherside also has the requisite criminal intent for bribery — and regardless of whether the transaction is ever consummated — does not changethe fact thatat least sometype ofparticipation by the other party is necessary for the commission of the crime. Thus, even under the People’s hypothetical scenario, Clapp and Woldenapply. Furthermore, the People ignore the fact that Wolden wasnotthe first, northe last, court to conclude that Clapp does, in fact, apply to bribery. (See supra, Sections III.A.1. and IIJ.A.2, and cases cited therein.) Indeed, Clapp itself notes thatthe rule applies to bribery. (Clapp, 24 Cal.2d at 839.) Nevertheless, the People ask this Court to ignore or overturn more than a century ofprecedent and find that the Clapp rule doesnot apply to bribery. The Court should decline to do so. 19 The People also argue that, at the very least, Clapp and Wolden do not apply to Count 4, which charges Mr. Burum with aiding and abetting an agreement to receive bribes by a county supervisorin violation of Penal Code section 165. (OB, p.27.) The People point out that Section 165 addresses both the crime of giving and the crime of receiving a bribe, whereas elsewhere the Legislature addressed these separate crimes in completely separate statutes (e.g., Penal Code sections 68 & 69, and 85 & 86). This argumentrests on an inaccurate and unduly narrow interpretation of the Clapp rule. Clapp explainsthat “[i]f a statutory provision so defines a crimethat the participation of two or more personsis necessary for its commission, but prescribes punishmentfor the acts of certain participants only, and anotherstatutory provision prescribes punishmentfor the acts of participants not subject to the first provision....” (Clapp, 24 Cal.2d at 838,italics added.) Nothing in Clapp, or elsewhere, precludes the “provisions”at issue from being contained within the same section of the code. Thus, for example, the Court ofAppeal in Grayson applied the Clapp rule and found that the person placing anillegal bet could not be charged under Section 31 for aiding and abetting the acceptance of the bet, even though both offenses were included in the samestatute, Penal Code section 337a. (Grayson, 83 Cal.App.2d at 518-19.) Similarly here, the fact that the Legislature chose, for whatever reason, to place both the crime of giving a bribe and the crime of accepting a bribe by a countyorcity official in the same section of the code doesnot changethe fact that they are separate crimes. Indeed, other than being combined in onesection of the code, there is no substantive difference in howthese crimesare described in Section 165 comparedto other bribery statutes, such as Sections 67 and 69—the difference is purely organizational. Moreover, even if this organizational decision were to be 20 interpreted as overriding the rationale relied on by Clapp and Wolden, the bribe giver and bribe receiver wouldstill have fundamentally different intents, such that they could not be charged under Section 31 with aiding and abetting each other. (Beeman, 35 Cal.3d at 560; see supra, Section II].A.3.) In short, the inclusion ofboth bribe giving and bribe receiving in Section 165 does not removethis statute from the scope of Clapp and Wolden, and thus Count 4 wasproperly dismissed together with the other bribery charges against Mr. Burum. 6. The Alleged Threats and Extortion Are Irrelevant to the Bribery Charges In a final attempt to sidestep the Clapp and Wolden rule, the People argue that the Indictment’s allegations of threats and extortion provide an independentbasisfor liability under Section 31. (OB, pp.28-29.) The Court ofAppealrejected this legally and logically flawed argument, and this Court should do the same. Asaninitial matter, most of what the People claim are “threats” and “extortion” are constitutionally-protected exercises of free speech—e.g., campaigning against Measure P andcreating variouspolitical mailers regarding Messrs. Postmus and Biane, both ofwhom were running for office. (CT 6:26-7:21.) But “[c]itizens... have every right to try to influence their public officers — through petition and protest, promises of political support, and threats ofpolitical reprisal.” (Agan v. Vaughn (11th Cir. 1997) 119 F.3d 1538, 1544, citation omitted.) Indeed, limitations on political expression are subject to “exacting scrutiny” by the courts. (Meyer v. Grant (1988) 486 U.S. 414, 420.) In particular, “[t]he freedom of speech and of the press guaranteed by the Constitution embracesat the least the liberty to discuss publicly and truthfully all matters ofpublic concern without previous restraint or fear of subsequent punishment.” (Thornhill v. Alabama (1940) 310 U.S. 88, 101-02.) And “no rule can escapeFirst 21 Amendmentscrutiny by bearing an innocuouslabel.” (Castro v. Superior Court (1970) 9 Cal.App. 675, 684.) Ifa state law does not show “the necessary sensitivity to freedom of expression . . . it must fall.” Ud. at 691 [citations omitted].) Likewise, the First Amendmentforbids government officials from retaliating against an individual for “speaking out,” for fear of “chilling” or “silencing”that individual’s future protected First Amendmentactivities. (See Lacey v. Maricopa County (9th Cir. 2012) 693 F.3d 896, 916-17.) As such, the People’s attempt to base a conspiracy charge on Messrs. Burum and Erwin’s participation in the political process is improper.® Even setting aside the constitutional protection affordedto this alleged conduct, the People’s tortured attemptto tie the alleged extortion and threats to the crimeofbribery is illogical, legally unsupported, and contrary to the Indictment. Asit stands, the Indictment simply does not charge Mr. Burum with using threats, menace, commands, or coercion to compel Messrs. Postmus, Biane, and Kirk to commit the crime of receiving bribes—which,of course, is the underlying crime for which the prosecution seeks to charge Mr. Burum as an aider and abettor in Counts 4, 5, 7, and 8. * Forthat matter, the underlying charges ofbribery are constitutionally suspect. Mr. Burum is not accused of slipping envelopes of cash underthe table—heis accused of makingpolitical donations through fully documented, duly recorded, and publically reported PAC contributions. Such activity is constitutionally protected. (See United States v. Siegelman (11th Cir. 2011) 640 F.3d 1159, 1169-70 [“In a political system thatis based uponraising private contributions for campaigns for public office and for issue referenda”it is a “particularly dangerouslegal error... to instruct a jury that they may convict a [bribery] defendant for his exercise of either of these constitutionally protected activities”]; McCormick v. United States (1991) 500 U.S. 257, 272 [to find that legislators commit extortion based on their receipt or solicitation of campaign contributions “would open to prosecution... conduct that has long been thought to be well within the law.”].) Criminalizing this protected activity poses a far graver threat to law and liberty than anything alleged by the People. 22 (CT 13:21-16:5.) Rather, the supposed threats and coercion are alleged to have occurred in conjunction with the bribes for the purpose of securing the Board’s approval of the Settlement. (CT 5:3-7.) In other words, there is a fatal disconnect betweenthe intent alleged in the Indictment and the intent necessary to sustain a charge under Section 31. The Indictment alleges that the supposed extortion was committed with the intent to secure votes in favor of the Settlement—zot with the intent to have Messrs. Postmus and Biane receive monetary benefits through their acceptance of bribes, as required to charge Mr. Burum with aiding and abetting the receipt of bribes under Section 31. (See Beeman, 35 Cal.3d at 560.) Recognizing this disconnect, the People claim in their Opening Brief that “[t]he indictment sets forth the use of threats, extortion and other tactics by Burum and Erwin to wear down Postmusand Biane’s resistance and compel them to accept the bribes and pressure each other to accept as well.” (OB, p.2.) This is inconsistent with the Indictment andall previous briefing by the People. Until their Opening Brief, the People have been clear that the supposed threats are alleged to have been used in conjunction with the bribes to obtain the Settlement vote. For example, the Indictment alleges that Mr. Burum “corruptly influenced members of the Board of Supervisors through a combination ofthreats, extortion, inducements, and bribery in order to secure their vote in favor of a settlement.” (CT 5:5-7, italics added.) Similarly, in accusing Mr. Burum ofvarious acts of extortion, the Indictment alleges that Mr. Burum “conducted a campaign against Measure P... in order to obtain a settlement in the Colonies lawsuit against the County,” and that he “hired private investigators to go through Postmus’ trash” so he could pressure Mr. Postmusto convince Mr. Biane “to vote infavor ofa settlement in the Colonies lawsuit against the County.” (CT 6:28-7:7, italics added.) 23 As can be seen, the People’s attempt to sidestep Clapp and Wolden based on the allegations of threats and extortion is directly contradicted by the allegations in the Indictment. Even accepting these allegationsas true for purposes of demurrer, there simply are no allegations that Mr. Burum threatened, coerced, or extorted anyone to accept a bribe. As such, the requisite intent for Section 31 liability is completely missing, and dismissal of the legally-flawed bribery charges against Mr. Burum remainsproper. 7. Holding that Bribe Givers and Bribe Receivers Can Aid and Abet Each Other Would Undermine the Legislative Intent in Amending Section 1111, and Could Thwart Future Bribery Prosecutions The People raise two policy-related arguments against the application of Clapp and Wolden. Neither has any merit. First, the People claim that application of the Clapp rule to bribery would violate public policy “by giving the bribe offeror a free pass to engage in coercive and threatening conduct to compel the recipient to accepthis offer.” (OB, p.17.) The People later revisit this “free pass” argumentin their strained kingpin/mule analogy. (/d. at pp.34-35.) This argument is fundamentally misleading. Under no circumstances would a bribe offeror be given a “free pass” by application of Clapp and Wolden. Indeed, the very reason for the Woldenruleis that the bribe giver/offeroris separately liable for the crime of giving/offering the bribe. Thus, quite contrary to receiving a “free pass,” the bribe offeror normally will face felony charges for the crime he committed—namely, offering a bribe. Of course, this is not a normal Indictment. Rather, the People’s novel charging schemeagainst Mr. Burum is the result of a unique confluence of factors, most notably the failure to charge Mr. Burum with giving or offering bribes before the expiration of the statute of limitations. (See supra, fn.3.) Instead, the People failed to bring timely charges against 24 Mr. Burum,and thetrial court and Court of Appeal properly rejected the People’s attempt to plead aroundthestatute of limitations by using an impermissible charging scheme. All future prosecutors need do to avoid this result is to bring legally competent charges in a timely manner. The People’s failures here are not a “public policy concern”justifying abrogation of the long-standing and well-reasoned general rule of Clapp and Wolden. The People’s second “policy” argumentis that application of Clapp and Wolden would underminethe legislative intent behind Section 1111, which the People argue “was to prevent convictions based solely upon the self-serving and inherently suspect statements of accomplices.” (OB, pp.17-18.) The People cite to the dissent in Clapp for the proposition that any “exemptions” to Section 1111 should come from the Legislature, and not the courts. (Ud. at p.18.) But the Clapp and Wolden rule does come from the Legislature. As the People admit, the 1915 amendment to Section 1111 was “for the express purpose of abrogating the rule ofPeoplev. Coffey.” (Ud. at p.9.) And what the Legislature abrogated was Coffey’s holding that a bribe giver and bribe receiver were accomplices for purposes of Section 1111 regardless of the fact that they were not aiders and abettors of each other under Section 31. (Coffey, 161 Cal. at 440-441.) By abrogating this holding, the Legislature madeits intent clear that bribe givers and bribe receivers are not accomplices of one another—whichis precisely what Clapp and Wolden recognized. Finally,it is important to recognize the actual public policy impact of the People’s proposedrejection of Clapp and Wolden. Under current law, a bribe receiver can be prosecuted and convicted based solely on the uncorroborated testimony ofthe bribe giver (or vice versa). Thisis critical. After all, most bribery transactions are conducted in secret, making corroboration difficult, if not impossible. Clapp and Wolden — and the 25 amended Section 1111 — therefore provide an invaluable tool to prosecutors seeking to curb public corruption. But if the People prevail in this appeal, corrupt public officials will more easily escape punishment. Under the People’s theory, a bribe giver can be charged under Section 31 as an aider and abettor of the bribe receiver. Consequently, under Section 1111, the giver is an accomplice of the receiver, and his testimony must be corroborated. Lacking any other witnesses, and assumingthe corrupt official concealedhis receipt of the bribe, the prosecution will be unable to corroborate the businessman’s testimony, and the corrupt official will escape liability. The People’s zeal to prosecute Mr. Burum simply doesnotjustify jeopardizing the ability of future prosecutors to effectively combat actual corruption going forward. B. The Court of Appeal Correctly Held that Mr. Burum Cannot Be Charged With Conspiring to Commit the Crime of Receiving the Alleged Bribes In addition to its holding on aiding and abetting liability, the Court ofAppeal in Wolden held that: Nor are the giver and receiver guilty of a conspiracy, because the two crimes require different motives or purposes. (Wolden, 255 Cal.App.2d at 804, citing People v. Keyes (1930) 284 P. 1105” and Calhoun v. Superior Court In and For San Diego County (1955) 46 Cal.2d 18, 41-42.) Recognizing this additional holding, the courts below dismissed the target crimes of bribery in Count 1. (Opn., p.19.) The People fail to provide any reason to reversethis result. ” In Keyes, this Court denied review,but felt strongly enough aboutthe Court of Appeal’s improper ruling on conspiracythatit issued a per curium opinion explaining that a bribe giver and briber receiver cannot conspire with each other. (Keyes, 284 P. 1105.) 26 1. Wharton’s Rule Is Irrelevant Asthey did in their Petition for Review, the People grasp at a single reference by the Court of Appeal to Wharton’s Rule—andthentry to transform this dicta into the sole basis for the Court of Appeal’s ruling. (OB, p.31.) Having erected this straw man argument, the People proceed to tear it down by demonstrating that Wharton’s Rule has no application to the crime of bribery. The People are right: Wharton’s Ruleis irrelevant. But it is more irrelevant than the People will admit. Contrary to the People’s mischaracterization, the Court ofAppeal did not rely on Wharton’s Rule whenruling that the bribery conspiracy charge must be dismissed;rather, it relied on the principles set forth in Wolden. (Opn., p.19.) Indeed, the Court ofAppeal’s single-paragraph passing reference to Wharton’s Rule is nothing more than dicta, and is not even contained in the section of the Opinion addressing the conspiracy charge. (Opn., p.17 [mentioning Wharton’s Rule] and p.19 [addressing conspiracy].) This is no surprise given that Wharton’s Rule is fundamentally different than the rule in Wolden. As recognized by Wolden — andbythis Court in Keyes and Calhoun — the giver and the receiver of a bribe cannot conspire with one another because they have “different motives or purposes.” (Wolden, 255 Cal.App.2d at 804; see also People v. Swain (1996) 12 Cal.4th 593, 600 [conspiracy requires a showing ““‘not only that the conspirators intended to agree but also that they intended to commit the elements ofthat offense.’” [Citation.] Italics in original.].) Wharton’s Rule, on the other hand, recognizes that the participants in certain crimes that require two or more persons cannot be convicted of conspiracy because the Legislature has signaled that any conspiracy should be merged with the substantive offense, even thoughall participants have the same intent. (See People v. Mayers (1980) 110 Cal.App.3d 809, 815.) 27 In other words, while Wharton’s Rule is an exception to general conspiracy law, Woldenis consistent with, and indeed groundedin, one of the basic elements of a criminal conspiracy—namely, the requirement of common intent. (See Swain, 12 Cal.4th at 600.) Understandably, then, the Court of Appealdid not base its opinion on Wharton’s Rule, and this entire portion of the People’s Opening Briefis irrelevant. 2. The Court of Appeal Properly Relied on Wolden Setting the People’s Wharton’s Rule diversion aside, the focus can nowbe turnedto the actual basis for the Court of Appeal’s ruling on the conspiracy charge: Moreover, Wolden also holds that the bribe giver and the bribe receiver cannot be “guilty of a conspiracy, because the two crimes require different motives or purposes.” [Citations.} Thus, we conclude the trial court also correctly sustained defendant Burum’s demurrerto target crimes 1 and 2 of the conspiracy charged in count1. (Opn., p.19.) This ruling is fully consistent with this Court’s prior rulings on this issue. As explained in Keyes: It is true that a set of defendants may conspire to give, or a set of defendants may conspire to receive or accept, a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room Jor the operation ofa charge ofconspiracy. (Keyes, 284 P. 1105, italics added.) Twenty-five years later, the same conclusion was reachedin Calhoun: There are a numberof crimes which twoparties can agree to commit, but which they cannot conspire to commit, since they enter the agreement with different objectives. Bribery, adultery, bigamy and subornation of perjury are 28 crimes ofthis class. [Citation.] Two parties may conspire to give a bribe [citation]; they may conspire to accept a bribe [citation]; they may commit bribery, one giving and one accepting [citation]; but they cannot conspire to commit bribery, one to give and oneto accept. [Citation.] (Calhoun, 46 Cal.2d at 41-42,italics in original.) This is the rationale — not Wharton’s Rule — underlying the holding in Wolden that the giver and receiver of a bribe cannot conspire with each other. (Wolden, 255 Cal.App.2d at 804.) Andthis, in turn, was the rationale properly relied on by the Court of Appealto affirm the dismissal of the bribery conspiracy charges against Mr. Burum. (Opn., p.19.) As with the improperaiding and abetting charges, the People havefailed to provide any reason why this Court should overturn nearly a century of precedent to hold otherwise here. OF If This Court Overturns Clapp and Wolden, Due Process Prohibits Retroactively Applying the New Rule of Law to Mr. Burum Even if this Court overturns Clapp and Wolden, Mr. Burum cannot be prosecuted under the expansion ofliability sought by the People without violating fundamental tenets of due process. 1. Due Process Precludes the Ex Post Facto Application of Laws and Judicial Decisions “An ex post facto law is ‘any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensomethe punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed ....” [Citation.]” (In re Baert (1988) 205 Cal.App.3d 514, 517.) The United States Constitution forbids ex post facto laws for several reasons. First, it protects liberty by 29 invalidating statutes with “manifestly unjust and oppressive”retroactive effects. (Calder v. Bull (1798) 3 U.S. 386, 391.) Second,it preserves a defendant’s right to “fair warning” of the charges against him, allowing him to preserve exculpatory evidence and mount a defense. (Stognerv. California (2003) 539 U.S. 607, 611.) Third, it protects defendants from unwise laws passed “out of the feelings of the moment.” (Fletcher v. Peck (1810) 10 U.S. 87, 137-38.) This principle has been extended to judicial decisions through the Due Process Clause. (People v. King (1993) 5 Cal.4th 59, 79-80.) “‘[A] state Supreme Court,no less than a state Legislature, is barred from making conduct criminal which was innocent whenit occurred, through the process ofjudicial interpretation.’” (People v. Morante (1999) 20 Cal.4th 403, 431.) Indeed, both this Court and the United States Supreme Court have recognizedthat “a judicial enlargement of a criminalstatute that is not foreseeable, ‘applied retroactively, operates in the same manneras an ex post facto law.’ [Citation.]” Ud.; Bouie v. City ofColumbia (1964) 378 U.S. 347, 353 [same].) Thus, a judicial decision cannotbe retroactively applied if it is “‘unexpected and indefensible by reference to the law which had been expressedprior to the conduct in issue.’” (King, 5 Cal.4th at 80, quoting Bouie, 378 U.S. at 354; Rathert v. Galaza (9th Cir. 2006) 203 Fed. Appx. 97, 99 [reversing denial ofhabeas petition where “the California Supreme Court retroactively abrogated a specific intent requirement established by a decade old, uncontradicted, and controlling appellate court case’’].) 2. Because Overturning Clapp and Wolden Would Constitute an Ex Post Facto Judicial Decision, It Could Not Be Applied to Mr. Burum It has long been the law in California that a bribe giver cannot conspire with, or aid and abet, a bribe receiver. Indeed, this Court has 30 spokenat least four times on the subject, and the Court of Appeal several more times: e Keyes, 284 P. 1105 (the bribe giver and bribe receiver cannot conspire with each other); © Calhoun, 46 Cal.2d at 41-42 (same); e Davis, 210 Cal. at 557 (“the giver and receiver of a bribe are no longer accomplices one to another’); e Clapp, 24 Cal.2d at 839 (same); e Bunkers, 2 Cal.App. at 204 (the Legislature “never intended that [the bribe giver and bribe receiver] would be interchangeably guilty as accomplices”); e Lips, 59 Cal.App. at 385 (bribe giver “was in no way concerned with the officers in either asking, receiving or agreeing to receive the bribe,” because “[s]he was on the opposite end of the transaction”); e People v. Martin (1931) 114 Cal.App. 392, 395 (the bribe receiver is not an accomplice of the bribe giver); e Bennett, 132 Cal.App.2d at 581 (analyzing bribery statutes to demonstrate that, where persons are not liable for prosecution for identical offenses, they cannot be accomplices); e People v. MacKenzie (1956) 144 Cal.App.2d 100, 106 (“Those who pay bribe are not accomplices of those who conspire to ask and receive the bribe.”); e Wolden, 255 Cal.App.2d at 804 (“Bribery is such a crime. The giver whose offense is specifically made a crime [citation] is not an accomplice in the separate and distinct crime [citation] of the receiver [citations]. ... Nor are the giver and receiver guilty of a conspiracy, because the two crimes require different motives or purposes[citations].”). Just as telling is the complete lack of any cases holding to the contrary. Indeed, the California courts have spoken with one voice for more than a century: A bribe giver simply cannot be charged with aiding and abetting, or conspiring with, the bribe receiver. 31 This rule is also reflected in California’s model jury instructions on bribery. California’s standard CALCRIM jury instructions on bribery, numbers 2600 and 2603, both cite Wolden for the premise that a bribe-giver cannot be the accomplice ofa bribe-receiver. (MJN Exs. C & D.) Because of the “existence and wide publication ofthis standard instruction, it was foreseeable that it would be applied” here. (Clark v. Brown (9th Cir. 2006) 450 F.3d 898, 915 [“To evaluate foreseeability, we may also look to the CALJIC instruction in place at the time oftrial.”].) And, just as in Clark, there was “no indication whatsoever” that the same rule would not apply to Mr. Burum and the other defendants in the Indictment. (/d.) Even the People have now recognized,at least implicitly, that this rule against derivative liability is both long-standing and unchallenged,as evidencedby their request that this Court overturn the established rule and instead apply a new, broaderrule allowing them to charge Mr. Burum as the aider and abetter, and conspirator, of the bribe receivers. (OB,p.13.) But, as discussed above, the only case the People cite in which such a charging schemeis approved is a Michigan case applying Michigan bribery laws. (See supra, Section IJJ.A.2.) As the United States Supreme Court has explained,“[i]t would be a rare situation in which the meaning of a statute of another State sufficed to afford a person ‘fair warning’thathis ownState’s statute meant something quite different from what its words said.” (Bouie, 378 U.S. at 359-360.) Thus, even if this Court overturns Clapp and Wolden now,Mr. Burum cannotbe prosecuted under the new rule because doing so would violate due process. (Moss v. Superior Court (1998) 17 Cal.4th 396, 429 [“Like retroactive application of an ‘unforeseeable andretroactive judicial expansion ofa statute [citation], retroactive application of a decision disapproving prior authority on which a person may reasonablyrely in determining what conductwill subject the person to penalties, denies due 32 process.”); Devine v. New Mexico Dept. ofCorr. (10th Cir. 1989) 866 F.2d 339, 346 [finding that state supreme court decision was unforeseeable in light of published sources ofstate law].) Importantly, it is irrelevant whether this Court agrees with the People that all of the prior published court decisions were in error. A due processviolation can occur where “lower appellate courts [] consistently, but erroneously”apply statute the same way. (People v. Farley (1996) 45 Cal.App.4th 1697, 1706.) Nor does it matter that the Indictmentalleges, but does not charge, that Mr. Burum gave a bribe. Whetherthe alleged wrongdoer’s actions were innocentor “societally unacceptable,” that distinction “is one of degree and does notalter [this Court’s] fundamental inquiry” into due process concerns. (Baert, 205 Cal.App.3d at 521-522; People v. James (1998) 62 Cal.App.4th 244, 275-276 [rejecting government’s argumentthat there was no due processviolation because defendant’s conduct wasnot “completely innocent when committed”].) Finally, permitting the People to pursue the bribery charges against Mr. Burum would impermissibly resurrect time-barred charges. As already discussed, Mr. Burum wasnot charged with agreeing to give bribes because such charges were barredbythe statute of limitations and not subject to the discovery rule of Penal Code section 803. (See supra, fn. 3.) The Indictment alleges that the supposed agreementto give bribes was reached on or before November 29, 2006. (CT 5:5-8, 13:21-16:6.) The statute of limitations for the crime of agreeing to give bribes thus expired nolater than November 29, 2009—almost a year-and-a-half before the Indictment wasfiled on May 9, 2011. By charging Mr. Burum with aiding and abetting the receipt of bribes, the People hopedto resurrect this already time-barred prosecution by invoking the discovery rule of Section 803. This too violates due process. (Stogner, 539 U.S.at 609 [finding that“a criminal prosecutionafter expiration of the time periods set forth in 33 previously applicable statutes of limitations” violates the ex post facto clause].) In summary, even if this Court were to overturn the bright-line rule set forth in Clapp, Wolden, and the numerousothercases that have recognized that a bribe giver cannot be charged underderivative theories of liability for the crime of receiving a bribe, such a new and unforeseeable interpretation of the bribery statutes cannot be applied to Mr. Burum. Prosecuting Mr. Burum under these circumstances would deprive him of fair notice in violation of due process. D. The Court of Appeal Correctly Held that Mr. Burum Cannot Be Charged With Aiding and Abetting or Conspiring in the Alleged Violation of Government Code Section 1090 Mr. Burum is charged in Counts 1 and 11 with conspiring and aiding and abetting in a violation of Government Code Sections 1090 and 1097. (CT 3:14-22, 17:1-10.) The Court of Appeal properly found that Mr. Burum’s demurrer to these charges should have been sustained. The People’s only argumentotherwise is that the Court ofAppeal “misread” the decision in D’Amato, and that D’Amato’s holdingis limited to cases implicating the separation ofpowers doctrine. (OB, p.39.) Notso. The pertinent holding in D’Amatois quite straightforward. After addressing the separation ofpowers doctrine — whichis not implicated here — the D’Amato court heldthat, “[m]oreover, the Legislature’s wording of section 1090 evinces the intent to exclude aider and abetterliability.” (D’Amato, 167 Cal.App.4th at 873.) This holdingis directly applicable to the charges broughthere, as explained by the Court of Appeal: We share our colleagues’ view that the Legislature intended Government Code section 1090 to exclude criminal liability on either a conspiracy or an aiding and abetting theory for anyone other than public officials and public employees with a financial interest in the 34 underlying contract. Neither defendant Burum nor defendant Erwin was a public official at the time alleged in the indictment. Therefore, the trial court should have sustained their demurrers to count 11, and to target crime 5 of count1. (Opn., p.38.) Not only is this conclusion legally correct, it is completely uncontradicted by any other California decision—and there simply is no reason for this Court to reverse this conclusion here. 1. Government Code Sections 1090 and 1097 Do Not Apply to Private Citizens ASan initial matter, it is important to keep in mind that Mr. Burum, as a private citizen, falls outside the scope of Sections 1090 and 1097. By its plain language, Section 1090 only applies to “[m]embersof the Legislature, state, county, district, judicial district, and city officers or employees.” Similarly, criminal liability under Section 1097 is limited to “{e]very officer or person prohibited by the laws ofthis state from making or being interested in contracts....” This limited scope is confirmed by the statutes’ legislative history. (See MJN Ex. E [noting that this legislation “relat[es] to the organization and operation of State governmentand the general qualifications ofpublic officers.”(Italics added.)]; MJN Ex. F [describing Section 1090 as a provision “prohibiting enumeratedpublic officers to have anything to do in a personal capacity with transactions with which they were concernedin their official capacities.” (Italics added.)].) Notsurprisingly then, judicial opinions construing Sections 1090 and 1097 uniformly have recognized that these statutes are targeted solely at public officials and employees. (See, e.g., D'Amato, 167 Cal.App.4th at 868 [the object of Section 1090 “is to insure absolute loyalty and undivided allegiance” from public officials]; People v. Vallerga (1977) 67 Cal.App.3d 847, 867, fn.5 [“The purposeofthe prohibition is to prevent a situation wherea public official would stand to gain or lose something with respect 35 to the making of a contract over whichin his official capacity he could exercise some influence.”].) Here, Mr. Burum is a private businessman whose company happenedto enter into a contract with the County. (CT 2:21.) He was nota public official or employee — nor an independent contractor or some other agent for the County — and thus he doesnotfit within the categories of persons subject to Sections 1090 and 1097. 2. The Court of Appeal Properly Based Its Ruling on the Legislative Intent to Exclude Aiding and Abetting Liability The People’s attemptto use derivative theories ofliability to expand the scope of Sections 1090 and 1097 fails under the following rule of statutory interpretation: “[W]here the Legislature has dealt with crimes which necessarily involve the joint action of two or more persons, and where no punishment atall is provided for the conduct, or misconduct, ofone of the participants, the party whose participation is not denounced by statute cannot be charged with criminal conduct on either a conspiracy or aiding and abetting theory. So, although generally a defendant may be liable to prosecution for conspiracy as an aider and abettor to commit a crime even though he or she is incapable of committing the crime itself, the rule does not apply where the statute defining the substantive offense discloses an affirmative legislative policy the conduct of one of the parties shall go unpunished. |[Citation.]” (D’Amato, 167 Cal.App.4th at 873, italics added, quoting Jn re Meagan R. (1996) 42 Cal.App.4th 17, 24.) Asthe D’Amato court recognized, Sections 1090 and 1097 disclose just sucha legislative policy. (/d.) Had the Legislature intended to criminalize the participation of the non-public party to a contract violating Section 1090, it could have done so. Instead, the Legislature narrowed the 36 scope of criminalliability to apply only to public officials, and provided a separate civil remedy against the private contracting party. (See Carson Redevelopment Agency v. Padilla (2006) 140 Cal.App.4th 1323, 1336 [noting that Government Code section 1092 is “the most effective way to give section 1090 all the teeth that it needs” vis-a-vis the private party to the contract].) Thus, wherean alleged violation of Section 1090 involves a contract between public entity and a private citizen — such as here — under D’Amato and Meagan,the private citizen cannot be charged with aiding and abetting or conspiring to violate Section 1090 because: (1) Theprivate citizen is a necessary participantin the allege transaction; and (2) The Legislature has chosen not to punish private citizens under Sections 1090 and 1097. (See D’Amato, 167 Cal.App.4th at 873.) Such a result should come as no surprise. After all, in the long history of Section 1090, there is not a single published case in which a private party has been criminally charged with conspiring, or aiding and abetting, a violation of the statute—despite numerous cases whereit is clear that the private party knew about the public official’s conflict of interest, but entered into the contract anyway. (See, e.g., People v. Wong (2010) 186 Cal.App.4th 1433; People v. Honig (1996) 48 Cal.App.4th 289; Webb v. Superior Court (1988) 202 Cal.App.3d 872; People v. Watson (1971) 15 Cal.App.3d 28.) Instead, prosecutors have uniformly recognized — at least until this case — that the plain language andlegislative intent of Sections 1090 and 1097precludecriminal liability for private citizens.” To the extentthereis any uncertainty regarding the scope of these statutes, underthe rule of lenity a criminal statute is to be construed “as favorably to the defendantas its language and the circumstanceofits application reasonably permit. The defendantis entitled to the benefit of every reasonable doubtasto the true interpretation of words or the 37 3. The People’s Attempts to Distinguish D’Amato Fail The People’s principal attack on D’Amato is to mischaracterizeit as only a separation of powers case. (OB, pp.37-39.) D’Amato is not so limited. After discussing the separation ofpowers doctrine, the court transitioned into an additionalbasis for its holding: “Moreover, the Legislature’s wording of section 1090 evinces the intent to exclude aider and abetter liability.” (D’Amato, 167 Cal.App.4th at 873.) It is this rationale — and not the separation of powers doctrine — with which the Court of Appeal agreed when holding that Mr. Burum’s demurrerto the Section 1090 charges should have been sustained. (Opn., pp.37-38.) The People also attempt to distinguish D’Amato basedonits discussion ofPeople ex rel. State ofCalifornia v. Drinkhouse (1970) 4 Cal.App.3d 931. (OB, pp. 39-40.) As an initial matter, Drinkhouse was not a criminal case—it wasa civil quiet title action involving real property conveyedby one public official (a tax collector) to another public official in violation of Section 1090. (Drinkhouse, 4 Cal.App.3d at 934-935.) More importantly, the court in D’Amato did not “expressly distinguish[] and reaffirm[]” Drinkhouse as the People claim. (OB, p.39.) Rather, the court merely noted that the rejection of derivative liability for violations of Sections 1090 and 1097 would not have changedthe result in the Drinkhouse criminal case becausethe aider and abettor wasalso a public official, and thus was independently guilty of violating Section 1090. (D’Amato, 167 Cal.App.4th at 875.) Mr. Burum,on the other hand, was not a public official with a financial interest in the transaction. Therefore, he cannot be chargeddirectly or derivatively under Section 1097, and nothing in Drinkhouse or the D’Amato court’s discussion ofDrinkhouse changes this conclusion. construction of a statute.” (People v. Overstreet (1986) 42 Cal.3d 891, 896.) 38 4. Strong Public Policy Concerns Would Be Implicated by Expanding Liability Under Sections 1090 and 1097 to Include Private Parties to a Public Contract. The D’Amato court also noted that permitting derivative liability under Section 1090 “could have dire consequencesaffecting the ability of a local legislative body to operate in an independent manner.” (D'Amato, 167 Cal.App.4th at 874.) The ramifications of permitting the prosecution of private citizens on derivative theories ofliability would benoless dire. Indeed, it would have a devastating chilling effect on the willingness of privatecitizens to enter into contracts with public entities. The People glibly dismiss this concern by claiming that “the rule deters only intentional unlawful conduct, and therefore poses norisk of having a chilling effect on the willingness ofprivate citizens to enter legitimate and lawful contracts with governmentagencies.” (OB,p.41.) But the fact that a contractis legitimate and lawful will not alwaysprotect a private citizen from an overzealousandpolitically-motivated prosecution. Andwhile the private citizen may ultimately be vindicated, the social and monetary costs of such prosecution are devastating—coststhat private citizens most certainly would take into account when negotiating contracts with public entities. (Cf Robinson Helicopter Co. v. Dana Co. (2004) 34 Cal.4th 979, 996 [noting “the value commercial parties place on predictable potential costs and the chilling effect tort exposure in routine breach cases would have on commercial enterprise”].) This result, particularly in the face ofclear legislative intent that Sections 1090 and 1097 are not directed at non-governmentalparties,is unjustifiable and should berejected. (D’Amato, 167 Cal.App.4th at 874 [“*Tothe extent that uncertainty remainsin interpreting statutory language, “consideration should be given to the consequences that will flow from a particular interpretation.’’” (Citations.)].) 39 5. Due Process Prohibits Retroactively Applying Any Expansion of Liability Under Sections 1090 and 1097 Asdiscussed supra, Section JII.C, due process concerns prohibit the ex post facto application of a new and unforeseen judicial interpretation of a statute. (Moss, 17 Cal.4th at 429.) Thus,if this Court finds for thefirst time — contrary to all previous judicial interpretations of the statutes — that private citizens are subject to aiding and abetting liability under Sections 1090 and 1097, such a ruling should notretroactively be applied here. E. The Court of Appeal Erred In Finding that Government Code Section 9054 Was Constitutionally Sound Mr. Burum has been charged in Count 1 with conspiring to violate Government Code section 9054, whichstates in relevant part: Every person who obtains, or seeks to obtain, money or. other thing of value from another person upona pretense, claim, or representation that he can or will improperly influence in any manner the action of any member of a legislative body in regard to any vote orlegislative matter, is guilty of a felony. This statute is unconstitutionally vague becauseit fails to define what constitutes “improperly” influencing, as opposedto constitutionally- protected lobbyingactivities. “It is a basic principle of due process that an enactmentis void for vaguenessif its prohibitions are not clearly defined.” (Grayned v. City ofRockford (1972) 408 U.S. 104, 108.) The Court of Appeal’s failure to recognize that Section 9054 is void for vagueness should be reversed. 1. Section 9054 is Unconstitutionally Vague To pass constitutional muster, a penal statute must provide notice as to what specific conductis being criminalized—andit must do so “with sufficient definiteness that ordinary people can understand what conductit prohibits.” (United States v. Poindexter (D.C. Cir. 1991) 951 F.2d 369, 40 378.) Just as important, a statute must “establish minimal guidelines to govern law enforcement.” (Kolender v. Lawson (1983) 461 U.S. 352, 357- 58.) Without such guidelines, a criminal statute would permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personalpredilections.” (/d.) Whena criminal statute impacts First Amendmentrights, even “greater precision should be required to survive a void-for-vagueness challenge.” (People v. Mirmirani (1981) 30 Cal.3d 375, 383; see also Smith v. California (1959) 361 U.S. 147, 150-51 [warning against “threatening those whovalidly exercise their rights of free expression with the expense and inconvenienceof criminal prosecution”]. Indeed, the United States Supreme Court repeatedly has struck downlegislation “on its face” for precisely this reason. (Secretary ofState ofMd. v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947, 965, fn. 13 [collecting cases where statutes were struck downfor facially infringing on protected First Amendmentactivity].) Poindexter illustrates the fundamental requirementthat a statute adequately define the criminal conduct. Poindexter was convicted of violating 18 U.S.C. section 1505 for having “corruptly influenced” a congressional investigation. (Poindexter, 951 F.2d at 377.) The Supreme Court reversed the conviction, recognizing that, “on its face, the word ‘corruptly’ is vague; that is, in the absence of some narrowing gloss, people must “guess at its meaning anddiffer as to its application.’” (/d. at 378.) Notably, the court rejected various dictionary definitions of the adjective “corrupt” — including the term “improper” — because they were “no more specific—indeed they maybeless specific—than ‘corrupt.’” (Jd. at 378- 379.) The court concludedthat “the term ‘corruptly’ is too vague to provide constitutionally adequate notice” of the prohibited conduct. (/d.) 4] This Court should reach the same conclusion regarding Section 9054. The “criminal” nature of the conduct addressed by Section 9054 depends entirely on the phrase “improperly influence.” Everything else describedin thestatute is perfectly legal, routine lobbying. (Gov. Code § 82039, subd. (a)(1) [defining “Lobbyist”as an individual whois paid “to communicate directly or throughhis or her agents with any elective state official, agency official, or legislative officialfor the purpose ofinfluencing legislative or administrative action” (italics added)].) Not only is lobbying authorized under California law,it is constitutionally protected under the First Amendment. (F.C.C. v. League of WomenVoters ofCal., 468 U.S. 364, 405 (1984) Rehnquist, J., dissenting [the “right to lobby is constitutionally protected”); Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 45-46 [lobbying involves fundamentalrights protected under the First Amendment].) Section 9054 thus purports to criminalize constitutionally-protected activity based solely on the term “improper”—but without providing any guidance as to what type of conduct is proper, and what is improper. Faced with similar attempts to regulate “improper” conduct, courts have consistently recognized that the term is unconstitutionally vague. As one District Court explained, “the purpose of a prohibitory rule is to inform those affected what is improper not merely that the ‘improper’ is prohibited.” (Marin v. Univ. ofPuerto Rico (D. P.R. 1973) 377 F. Supp.613, 627 [invalidating regulations barring “improperor disrespectful conductin the classroom or campus”]; see also JL. Spoons, Inc. v. City of Brunswick (N.D. Ohio 1998) 181 F.R.D. 354, 357-358 [finding a rule “overbroad onits face” because it “employs several extraordinarily vague terms, including ‘improper’...”]; Poindexter, 951 F.2d at 378-379 [noting that “improper” mayactually be “less specific” than the unconstitutionally vague term “corruptly”].) 42 The People argued below that “improper influence”is not vague because Congress used the word “improper” whenit enacted 18 U.S.C. section 1515(b) in response to Poindexter. (Return at 25-26.) But while the word “improper” wasincluded in the new definition of the term “corruptly,” Section 1515(b) now goes on to define what is meant by “corruptly” and “with an improper purpose”: As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing,altering, or destroying a documentor other information. Section 9054 contains no such definition or examples, nor does the Government Code contain a separate section — like 18 U.S.C. section 1515(b) — providing a definition of the term “improperly.” Section 9054 is therefore unconstitutionally vague on its face. 2. Under the Court of Appeal’s Interpretation, Section 9054 Not Only Remains Vague, But Also Impermissibly Criminalizes Free Speech The Court of Appeal upheld the validity of Section 9054 despite the weightof authority holding that the term “improper” is unconstitutionally vague. To do so, the Court of Appeal relied on a 1927 civil case which defined “improper influence”as “the use of personal, or any secret or sinister, influence uponlegislators” in support of passage ofan act, as opposedto “the open advocacy of the same before the legislature or any committee thereof in open session.” (Opn., pp.34-35, quoting Crawford, 200 Cal. at 321-322.) But this definition does not cure the statute’s vagueness. For example, because a prosecutor could charge a defendant underanyofthe alternative groundslisted in the Crawforddefinition, a lobbyist might be charged for representing that he or she will use “sinister” influence. But the 43 statute fails to provide any guidanceas to whatinfluenceis “sinister.” The Court of Appeal also claimed that Section 9054 criminalizes “influence peddling.” (Opn., p.35.) But again, no guidance is provided to differentiate illegal “influence peddling” from constitutionally-protected lobbying. More importantly, the Court of Appeal’s interpretation directly criminalizes modern lobbying by prohibiting the use of “personal influence.” For example, a former legislator would run afoul of Section 9054if she was hired based on a representation that she would meet with her former colleagues in the Legislature and use her “personal influence”to lobby for particular legislation. But this is an every-day occurrence in Sacramento, where paid lobbyists routinely use their “personal influence” to influence votes. And this does not occur on the floor ofthe legislature, or in open committee meetings; it occurs at dinners and fund-raisers, through personal phonecalls and private meetings, all of which could be deemed“secret” — and thus illegal — under the Court of Appeal’s definition. (Opn., pp.34-35.) In short, what Crawford and the Court ofAppealcall “improper influence” is simply another namefor perfectly legal, and constitutionally- protected, lobbying. (See Fair Political Practices Com., 25 Cal.3d at 45- 46.) The Court of Appeal’s interpretation of Section 9054 thus confirms that the statute is a facially unconstitutional restriction on the exercise of free speech. F. The People Do Not Have Unfettered Authority to Prosecute Mr. Burum Using Legally Deficient Charges Asthey did below, the People claim that dismissing any of the counts brought against Mr. Burum interferes with prosecutorial discretion. (OB, pp.41-42.) This argument should be summarily rejected. Once a charge has beenfiled and “the prosecutorial die [is] cast, the caseis 44 “before the court’ for disposition, and disposition is a function ofthe judicial power no matter what the outcome.” (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65.) Of course, the proper exercise of this judicial power includes dismissing charges where“the facts stated [in the indictment] do not constitute a public offense.” (Pen. Code § 1004, subd. (4); Mandel, 276 Cal.App.2d at 674-675 [demurrer should have been sustained because “the facts stated in the complaint do not constitute a public offense”].) This is precisely the case here. The allegations of the Indictment simply do not constitute violations of the bribery statutes or Sections 1090 and 9054, and therefore those counts should be dismissed on demurrer. IV. CONCLUSION For all of the foregoing reasons, Mr. Burum respectfully requests that this Court uphold the Court ofAppeal’s rulingsasto all bribery and Section 1090 charges against Mr. Burum,and reverse the Court of Appeal’s ruling as to the alleged conspiracy to violate Section 9054. Respectfully submitted, Dated: April 15, 2013 ARENT FOX LLP wy: ftrsa— Stephen G. Larson Mary Carter Andrues Attorneys for Defendant and Respondent JEFFREY BURUM 45 CERTIFICATE OF COMPLIANCE {Cal. Rule of Court 8.520(c)] This brief consists of 14,000 words as counted by the word processing program usedto generate the brief. Dated: April 15, 2013 ARENT FOX LLP vy. ftrte— Stephen G. Larson Mary Carter Andrues Attorneys for Defendant and Respondent JEFFREY BURUM 46 People v. Biane, et al. California Supreme Court Case No. $207250 PROOFOF SERVICE Iam a citizen of the United States. My business address is ARENT FOX LLP, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013. I am employed in the county of Los Angeles where this service occurs. I am over the age of 18 years, and not a party to the within cause. Onthe date set forth below, according to ordinary businesspractice, I served BY U.S. MAILthe following document described as: JEFFREY BURUM’S ANSWERBRIEF ON THE MERITS I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondenceis deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On this date, I placed the document in envelopes addressed to the personsstated on the attached service list and sealed and placed the envelopes for collection and mailing following ordinary business practices. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true and correct. Executed on April 15, 2013, at Los Angeles, California. Kimbetly Bardales SERVICE LIST Melissa Anne Mandel OFFICE OF THE ATTORNEY GENERAL P.O. Box 85266 San Diego, CA 92101 (619) 645-2224 (619) 645-2191 fax melissa.mandel(@doj.ca.gov Counsel for Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA Deputy D.A. Richard Lewis Cope SAN BERNARDINO COUNTY DISTRICT ATTORNEY 303 W. 3™ Street, 5" Floor San Bernardino, CA 92415 (909) 382-7609 (909) 388-6721 fax rcope@sbeda.org Counsel for Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA David M. Goldstein LAW OFFICE OF DAVID M. GOLDSTEIN 10535 Foothill Boulevard, Suite 300 Rancho Cucamonga, CA 91730 (909) 466-4757 (909) 980-5525 fax Dave@daveglaw.com Counsel for Defendant PAUL BIANE Paul Grech,Jr. Chad Firetag LAW OFFICES OF GRECH & FIRETAG 7095 Indiana Avenue, Suite 200 Riverside, California 92506 (951) 682-9311 (951) 682-4289 fax firetag@yahoo.com paulgesq@pacbell.net Counsel for Defendant MARK KIRK Rajan R. Maline LAW OFFICE OF RAJAN MALINE 3750 University Ave., Suite 680 Riverside, CA 92501 (951) 779-0221 (951) 779-0229 fax rajmaline@aol.com Counsel for Defendant JAMES ERWIN Steven L. Harmon Law Offices of Harmon & Harmon 7095 Indiana Ave., Suite 200 Riverside, CA 92506 Counsel for Defendant JAMES ERWIN Clerk of the Court Criminal Division Attn: Hon. Brian McCarville SAN BERNARDINO COUNTY SUPERIOR COURT 351 N. Arrowhead San Bernardino, CA 92415 Clerk of the Court Criminal Division Attn: Hon. Michael A. Smith SAN BERNARDINO COUNTY SUPERIOR COURT 351 N. Arrowhead San Bernardino, CA 92415 Clerk of the CourtCalifornia Court of AppealFourth Appellate District, Division Two3389 Twelfth StreetRiverside, CA 92501